This written assignment provides 70% of your overall mark for the module. It tests your knowledge of the law and your awareness of the policy pressures that govern how the law is developed.
The Assessment Task is as follows –
Provide a response to the fictitious government consultation exercise set out below as if you were answering on behalf of either –
The Confederation of British Industry, presenting the view of employers;
Or the Trades Union Congress, presenting the view trade unions and workforces.
Ensure that you offer answers to all four of the questions put.
One key objective is to immerse you in the process of policy formation. As you do your research, you should want to consider –
– What themes are prominent in the invitations to comment? (But equally, are some themes from the broader debates missing, and if so why are they missing?)
– What arguments would my chosen constituency want to be making? (And how do I go about selecting the data that will support that argument?)
In short, you are not being called upon here to produce a balanced set of reflections, the hallmark of an academic essay answer, but to engage in advocacy, the hallmark of legal practitioners and policy makers.
Promoting good work is a core objective of governments internationally and one to which the United Kingdom is fully committed. Following the recent review of modern employment practices (Taylor 2017), the Government wishes to gather opinion on proposals to promote good work across the United Kingdom.
Recent statistics confirm the benefits to workers of flexible and adaptable labour markets. Work is crucial to the well-being and prosperity of households and the UK is seen internationally as a “successful employment performer”. Despite the shock to the economy delivered by the financial crisis of 2007-8, employment was less affected in the UK than in previous recessions or in other countries (BIS 2011). More people now have the opportunity to work than ever before and the stock of high-skilled jobs is increasing (IFS 2017; ONS 2017).
Employers were able to preserve employment by saving costs in other ways. Research by the Institute for Fiscal Studies (Blundell et al 2013) suggests that the majority of workers staying in the same job experienced real wage cuts. There have been some signs that a recovering economy will begin to encourage wage growth but upward pressure on pay is fragile (Resolution Foundation 2017). Some claim that this can be connected to a weakened floor of statutory employment standards in the labour market with some employers in the “Gig Economy” engaging workforces on a self-employed basis, thereby obviating obligations owed in law to employees and to workers (Field and Forsey 2016; Taylor 2017; WP/BEIS 2017).
Particularly in the context of the UK’s imminent exit from the European Union, care must be taken not to damage the carefully established balance of rights and responsibilities underpinning recent employment growth. Nevertheless, the government is minded to act on themes emerging from the Taylor review and the evidence submitted there.
In complex and quickly changing environments, it is clear that successful companies depend upon engagement with workforces and effective employee voice. In submissions to the review, both the CBI and the TUC recommended a stronger role for the Advisory Conciliation and Arbitration Service (Acas) in promoting employee voice.
Government considers the choice of voice mechanisms to be a matter for employers and for workers to determine for themselves, without interference from labour market agencies. Government also agrees with the CBI that appetite for formal collective representation through trade unions and collective bargaining has weakened in the modern workplace. Nevertheless, there may be opportunities to review the operation and provisions of the Information and Consultation of Employees Regulations 2004.
Government wishes to adopt a proportionate and balanced response to the development of the Gig Economy. While there is clearly scope for exploitation, flexible self-employment provides important sources of additional income for many workers. Moreover, trends in recent case law have supported claimants in employment status cases demonstrating that the law is already clear is and not in need of reform. Government is minded, however, to support efforts to ensure clarity in workplaces by extending the right to a written statement of the terms of engagement to all workers and agents and by encouraging Acas to develop an online tool for use in determining employment status.
Finally, successive Governments have encouraged a proportionate approach by labour market regulators, balancing the need to ensure fairness in labour markets with the flexibility that has underpinned the expansion of employment. Individuals already have effective opportunities to enforce their rights through the Employment Tribunal system. Measures such as stronger intervention from the Director of Labour Market Enforcement and the Gangmasters and Labour Abuse Authority (GLAA) (as recommended by the Law Society 2017) and punitive fines for non-compliance (WP/BEIS 2017) risk jeopardising this flexibility. In this context, since the issue has been raised by the Director of Labour Market Enforcement (2017), Government wishes to gather views on the benefits and risks of increased labour market regulation by extending the licensing regime operated by the GLAA into construction, social care and cleaning.
Written responses (maximum 3000 words) to consultation are welcome.
Blundell, R., Crawford, Cl & Jin, W. (2013) What Can Wages and Employment Tell Us about the UK’s Productivity Puzzle? IFS Working Paper W13/11. London, IFS.
Confederation of British Industry (CBI) (2017) Work that Works for All: Building a Fair and Flexible Labour Market that Benefits Everyone. Submission to the Taylor Review of Modern Working Practices. London, CBI.
Department for Business Innovation and Skills (BIS) (2011) Flexible, Effective, Fair: Promoting Economic Growth through a Strong and Efficient Labour Market. London, BIS.
Office for National Statistics (ONS) (2017) UK Labour Market: Statistical Bulletin. London, ONS. September.
Director for Labour Market Enforcement (2017) Labour Market Enforcement: 2017/18 Strategy.
Field, F. and Forsey, A. (2016) Wild West Workplace. Report by Frank Field, MP www.frankfield.co.uk
Institute for Fiscal Studies (IFS) (2017) The UK Labour Market: Where do we Stand Now? IFS Briefing Note BN 197. London, IFS.
Law Commission (2017) Better Employment Law for Better Work: How to Achieve the Best Working Practices in the Modern Workplace. Submission to the Taylor Review of Modern Working Practices. London, Law Commission.
Schmueker, K. (2014) Future of the UK Labour Market. York, Joseph Rowntree Foundation.
Whittaker, M. and Hurrell, A. (2013) Low Pay Britain 2013. London, Resolution Foundation.
Taylor, M. (2017) Good Work: The Taylor Review of Modern Working Practices. Department for Business Energy and Industrial Strategy, London.
Trades Union Congress (TUC) (2017) Living on the Edge. Submission to the Taylor Review of Modern Working Practices. London, TUC.
Work & Pensions (WP) and Business, Energy, and Industrial Strategy Select Committees (2017) A Framework for Modern Employment: Second Report of the Work and Pensions Committee and First Report of the Business, Energy and Industrial Strategy Committee of Session 2017-19. HC352. London, House of Commons.